International Law Commission

International Law Commission, Articles on Reponsibility Of States for Internatinally Wrongful Acts

August 2001, Special Rapporteur James Crawford

The International Law Commission (ILC) has been considering the general topic of state responsibility for a number of years. The ILC in August 2001 adopted a set of Articles and they stand as a code of the general principles of state responsibility. They have been commented on extensively by States and they command widespread, though not universal support, As ever, some parts of them remain controversial (e.g. Articles 40 dan 41) and some aspects of the (huge) topic of  responsibility are still to be completed (e.g. liability for injury to aliens). Never-theless, The Articles may form the basis of an international treaty, although the content of some (but certainly not all) already reflects customary international law.

Article 1 Responsibility of state for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2 Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

a.      Is attributable to the State under International law, and

b.      Constitutes a breach of an international obligation of the State.

Article 3 Characterization of an act of a State as internationally wrongful

The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.

Article 12 Existence of a breach of an international obligation

There is a breach of an international obligation by a State when an act of that state is not in conformity with conformity with what is required of it by that obligation, regardless of its origin or character.

Article 28 Legal consequences of an internationally wrongful act

The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part.

Article 29 Continued duty of performance

The legal consequencesof an internationally wrongful act under this Part do not affect the continued duty of the responsible State to perform the obligation breached.

Article 30 Cessation and non-repetition

The State responsible for the internationally wrongful act is under an obligation:

a.      To cease that act, if it continuing;

b.      To offer appropriate assurances and guarantees of non-repetition, if circumtances so require.

Article 40 Application of this chapter

1.      This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a premptory norm of general International law.

2.      A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Article 41 Particular consequences of a serious breach of an obligation under this chapter

1.      States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.

2.      No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

3.      This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.

Article 48 Invocation of responsibility by a State other than an injured state

1.      Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:

a.      The obligationbreached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or

b.      The obligation breached is owed to the international community as a whole.

2.      Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:

a.      Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and

b.      Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.

3.      The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

Article 58: Aindividual responsibility

These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.